State v. Whitmore, 307 P.3d 552

Defendant stopped for speeding at 3:20 a.m.; officer smelled alcohol, observed bloodshot eyes and slightly slurred speech, and administered four field sobriety tests (defendant failed three). Defendant submitted to a breath test at 4:15 a.m. showing BAC 0.08%. Charged with misdemeanor DUII.
Prosecution called Bray, an Oregon State Police forensic scientist, who testified about alcohol absorption/elimination rates, Widmark formula, and retrograde extrapolation; she opined that a 185-lb male drinking from ~9:00 p.m.–1:00 a.m. would need 7–10.5 drinks to have 0.08% at 4:00 a.m.
Defense filed a motion in limine seeking exclusion of retrograde-extrapolation evidence unless Brown/O’Key foundation for scientific evidence was shown; trial court denied the motion but granted a continuing objection.
Trial court admitted Bray’s testimony without the Brown/O’Key foundational showing; jury returned a guilty verdict.
On appeal, court reviewed preservation, whether the testimony constituted scientific evidence requiring Brown/O’Key foundation, and whether admission error was harmless; court reversed and remanded for a new trial.

Issue	State's Argument	Defendant's Argument	Held
Preservation of challenge to admission of expert testimony	Defendant failed to object at trial, so issue not preserved	Pretrial motion in limine and continuing objection preserved the issue	Preserved: motion in limine + continuing objection satisfied preservation requirements
Whether Bray’s testimony was "scientific evidence" under Brown/O’Key	Not necessarily; testimony focused on qualifications rather than novel methodology	Testimony invoked studies, literature, scientific vocabulary and credentials — thus scientific	Held scientific: expert framed testimony as based on studies and literature, so Brown/O’Key foundation required
Whether the state had to establish scientific validity of retrograde extrapolation	Retrograde extrapolation is established in prior Oregon decisions; no additional foundation required	State failed to provide Brown/O’Key foundation; prior cases did not judicially recognize retrograde extrapolation as scientifically validated	State’s argument rejected: prior cases did not establish retrograde extrapolation as a "clear case" of scientific validity; foundation required and not supplied
Harmless-error inquiry for erroneous admission of scientific testimony	Evidence of guilt still sufficient without the expert; error harmless	Expert testimony went to central issue (impairment/timing/quantity) and was likely influential	Error not harmless: expert testimony potentially influenced jury; conviction reversed and remanded

State v. Brown, 297 Or 404 (court sets foundational requirements for admission of scientific expert evidence)
State v. O’Key, 321 Or 285 (clarifies trial court duty to assess scientific validity before admitting expert scientific testimony)
State v. Marrington, 335 Or 555 (expert testimony grounded in studies and scientific vocabulary constitutes scientific evidence requiring Brown/O’Key showing)
State v. Bevan, 235 Or App 533 (erroneous admission of scientific-appearing evidence not harmless where it could have influenced jury)
State v. Davis, 336 Or 19 (harmless-error standard focuses on likelihood the error affected the verdict)